Dowd v. Bryce

GRIFFIN, Acting P. J.

This is an action for declaratory relief and to make a declaration of the rights and duties of the parties to a certain “Agreement for Sale of Business and Real Estate.” The three Dowd brothers, who were engaged in the business of operating a grocery store, fruit and vegetable market and liquor store, on December 5, 1944, sold to defendants, all their right, title and interest in those “businesses, the Good Will therein ... as going concerns, ’ ’ and the real property, stock in trade, accounts, benefits and advantages which they were entitled to in respect to said trades or businesses. Subsequent to the execution of the above-mentioned agreement the Dowd Brothers sold all of their interest in the property herein involved to plaintiff R. H. Dowd. The plot of land was on Midway Drive, in San Diego. Part of this plot was

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occupied by the store buildings above mentioned, and a second section of the plot now owned by plaintiff, which adjoins the property sold but was not included in the sale, was entirely unoccupied. For the protection of the defendant purchasers, paragraph IV of the agreement was inserted and is the one in question. It provides:

‘ ‘ The sellers agree that they will not, for the period of ten years from the date of this Agreement, directly or indirectly, engage in similar businesses to the ones involved in this Agreement, within a radius of two miles of this property, nor knowingly, to sell any land within these same limits to a purchaser contemplating businesses of the same nature ...”

A further provision was inserted in the contract providing for damages in the sum of $15,000 should this provision be violated by the sellers. Paragraph VI of the agreement provides that the sellers “have now in themselves good right to assign the Good Will, stock in trade, fixtures and effects, . . . that they, the Sellers, shall not, either by themselves or with any other person or persons, do or cause to be done, any wilful act or thing to the prejudice of the said trades or businesses set forth above, as heretofore carried on and conducted by the Sellers ...” The whole contract consists of five typewritten pages, which was prepared by the buyers.

The particular question presented to the trial court was whether the obligation of the seller under the contract would be violated by plaintiff making a present